Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.433 OF 2013

(@SPECIAL LEAVE PETITION (CRL.) NO. 3475 OF 2008)

GAMBHIRSINH R. DEKARE … APPELLANT

VERSUS

FALGUNBHAI CHIMANBHAI PATEL

AND ANR. …RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

The petitioner Gambhirsinh R. Dekare, at the

relevant point of time was serving as Taluka

Mamlatdar and an Executive Magistrate in Vadodara

Taluka in the State of Gujarat. A Gujarati daily

newspaper “Sandesh” is published from different

places i.e., Surat, Valsad, Bharuch, Vadodara and

other cities of India. Navinbhai Chauhan is the

Page 2 Resident Editor of Vadodara edition of “Sandesh”

whereas Falgunbhai Chimanbhai Patel is the Editor of

“Sandesh”. The newspaper published a news item in

its Vadodara issue dated 28.09.1999 that the

petitioner “is in love and keeping illicit relations

with the wife of a doctor at Ajwa Road with the

following headlines:

“Mamlatdar Shri Gambhirsinh Dhakre is

caught red handed by the youngsters-

Mamlatdar is indulged in illicit

relations with the wife of Doctor who

is residing at Ajwa Road- attempts to

conceal the matter- why the Government

is not taking any action against the

Mamlatdar?”

According to the petitioner (hereinafter referred

to as “the complainant”), the allegation published in

the newspaper is false and defamatory. Accordingly,

he filed complaint in the Court of Chief Judicial

Magistrate, Vadodara. The complainant alleged that

the news items are printed in the newspaper “as per

the instructions and directions of the accused

persons”. In paragraph 3 of the complaint the

complainant alleged as under:

2

Page 3 “3. The Accused No. 1 and 2 of this

case have deliberately published the

news in the Page No. 12 of their daily

newspaper ‘Sandesh’ dated 28/9/99

which is quite defaming and offending

to us. The accused persons were in

the knowledge that we the complainant

shall be defamed in the Society due to

publishing of such news and with a

view to vilify us as the person having

bad character, the accused persons, in

collusion with each other, have

published the following news in the

newspaper deliberately.”

The complainant termed those allegations to be

false and stated that the Editor and the Resident

Editor have tried to prove him a characterless person

in the society and because of that he had faced

shameful and disgraceful situation amongst the family

members and friends. The news item further brought

him in disrepute in the Department and the public.

It has been alleged that the accused persons have

published the news item without any evidence or

proof. The complainant denied to have any illicit

relation with the doctor’s wife. The complainant was

examined on solemn affirmation in which he reiterated

the allegation.

3

Page 4 The Chief Judicial Magistrate, taking into

account the allegation made in the petition of

complaint and the statement of the complainant on

solemn affirmation, took cognizance of the offence

under Section 500, 501, 502, 506, 507 and 114 of the

Indian Penal Code and issued process against both the

accused.

Accused no. 2, Falgunbhai Chimanbhai Patel, the

Editor of “Sandesh”, aggrieved by the order taking

cognizance and issuing process, filed an application

before the High Court seeking quashing of the

complaint filed before the Chief Judicial Magistrate,

Vadodara on 08.10.1999. He sought quashing of the

complaint on the ground that he is the Editor of the

newspaper, stationed at Ahmedabad and the offending

news item was published in the Vadodara Edition of

the newspaper, of which Navinbhai Chauhan, accused

no. 1, is the Resident Editor. It was further

contended that he was not aware of the offending news

item being published in the newspaper or for that

matter he had any role to play in selection of such

item for publication. The High Court by the impugned

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Page 5 order allowed the application and while doing so

observed as follows:

“6. In the complaint itself, the

petitioner is described as editor of

the newspaper and his address is shown

at Ahmedabad. Original accused No. 1

is described as a resident editor of

Baroda of the same newspaper. It is

not in dispute that the newspaper in

question has its registered office at

Ahmedabad and Baroda edition of the

newspaper is being separately

published from Baroda. It is also not

in dispute that offending news item

was carried in Baroda edition of the

newspaper only.”

The High Court further went on to observe as

under:

“10. In the present case also, I find

that there is nothing in the complaint

to suggest that the petitioner herein

was aware about the offending news

item being published or that he had

any role to play in selection of such

item for publication. In absence of

any material disclosed in the

complaint and in view of the admitted

fact that the petitioner is an editor

of the newspaper stationed at

Ahmedabad and the news item was

carried in its Baroda edition alone

where the newspaper has a separate

resident editor, the petitioner cannot

be proceeded against for the offence

of defamation of the complaint.”

5

Page 6 The High Court came to the conclusion that

prosecution of accused no. 2 would amount to

miscarriage of justice and, accordingly, quashed the

complaint and the process issued against him.

It is against this order that the complainant has

preferred this special leave petition.

Leave granted.

Mr. Huzefa Ahmadi, Senior Advocate appears on

behalf of the complainant (appellant herein) whereas

accused no. 2 (Respondent no. 1 herein) is

represented by Mr. Dushyant Dave, Senior Advocate.

Mr. Ahmadi, submits that according to the

complainant, accused no. 2 was the Editor stationed

at Ahmedabad and there is specific allegation against

him that the news items are published in the

newspaper “as per the instructions and directions of

the accused persons”. The complainant has further

alleged in the complaint that both the accused i.e.

the Editor (accused no. 2) and the Resident Editor

(accused no. 1) had deliberately published the news

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Page 7 in their Gujarati daily newspaper “Sandesh” which is

defamatory. The complainant went on to say that the

“accused persons were in the knowledge that the

complainant shall be defamed in the society due to

publication of such news”. In the face of the

aforesaid allegation, Mr. Ahmadi points out that the

High Court committed a serious error by observing

that “there is nothing in the complaint to suggest

that” accused no. 2 “was aware about the offending

news item being published or that he had any role to

play in selection of such item for publication”. Mr.

Dave, however, submits that, according to the

complainant’s own showing, accused no. 2 was the

Editor of the newspaper stationed at Ahmedabad and

the offending news item having been published at

Vadodara for which there is admittedly a separate

Resident Editor, it has to be assumed that the

accused no. 2 was not aware of the same and had no

role to play in the selection of such item for

publication.

We have bestowed our consideration to the rival

submission and we do not find any substance in the

7

Page 8 submission of Mr. Dave. Complainant has specifically

averred in the complaint that the news item was

printed in the newspaper as per the instructions and

directions of the accused persons. The complainant

had specifically alleged that accused nos. 1 and 2

have deliberately published the offending news and it

was within their knowledge. At this stage, it is

impermissible to go into the truthfulness or

otherwise of the allegation and one has to proceed on

a footing that the allegation made is true. Hence,

the conclusion reached by the High Court that “there

is nothing in the complaint to suggest that the

petitioner herein was aware of the offending news

item being published or that he had any role to play

in the selection of such item for publication” is

palpably wrong. Hence, in our opinion, the High

Court has quashed the prosecution on an erroneous

assumption of fact which renders its order illegal.

Mr. Ahmadi, further submits that the impugned

order is vulnerable on another count. He points out

that according to the complainant, the present

accused was the Editor and his name has been printed

8

Page 9 as such in the publication and, therefore, he is

responsible for the publication of the news item.

Mr. Dave, however, submits that there being Resident

Editor for the Vadodara Edition of the newspaper, the

present accused, who is the Editor and stationed at

Ahmedabad, cannot be held responsible for the

publication. He emphasizes that it would be the

Resident Editor who shall be responsible for the

contents of the Vadodara Edition. In support of the

submission he has placed reliance on a decision of

this Court in the case of K.M. Mathew v. State of

Kerala, (1992) 1 SCC 217 .

A news item has the potentiality of bringing

doom’s day for an individual. The Editor controls

the selection of the matter that is published.

Therefore, he has to keep a careful eye on the

selection. Blue-penciling of news articles by any

one other than the Editor is not welcome in a

democratic polity. Editors have to take

responsibility of everything they publish and to

maintain the integrity of published record. It is

apt to remind ourselves the answer of the Editor of

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Page 10 the Scotsman, a Scottish newspaper. When asked what

it was like to run a national newspaper, the Editor

answered “run a newspaper! I run a country”. It may

be an exaggeration but it does reflect the well known

fact that it can cause far reaching consequences in

an individual and country’s life.

The scheme and scope of Press and Registration of

Books Act, 1867 (hereinafter referred to as “the

Act”) also brings forward the same conclusion.

Section 1 of the Act is the interpretation clause and

the expression “Editor” has been defined as follows:

“1. Interpretation-clause.-( 1)In this

Act, unless there shall be something

repugnant in the subject or context,-

xxx xxx xxx

"editor" means the person who controls

the selection of the matter that is

published in a newspaper;”

Section 5 of the Act provides for rules as to

publication of newspapers and prohibits its

publication in India except in conformity with the

rules laid down. Section 5 (1) of the Act which is

relevant for the purpose reads as follows:

10

Page 11 “5.Rules as to publication of

newspapers.-No newspaper shall be

published in India, except in

conformity with the rules hereinafter

laid down:

(1)Without prejudice to the provisions

of section 3, every copy of every such

newspaper shall contain the names of

the owner and editor thereof printed

clearly on such copy and also the date

of its publication.

xxx xxx xxx”

From a plain reading of the aforesaid provision,

it is evident that every copy of every newspaper

published in India is mandated to contain the names

of the owner and Editor thereof. It is in the light

of the aforesaid obligation that the name of the

accused no. 2 has been printed as Editor. Section 7

of the Act makes the declaration to be prima facie

evidence for fastening the liability in any civil or

criminal proceeding on the Editor. Section 7 of the

Act reads as follows:

“7. Office copy of declaration to be

prima facie evidence.- In any legal

proceeding whatever, as well civil as

criminal, the production of a copy of

such declaration as is aforesaid,

attested by the seal of some Court

empowered by this Act to have the

custody of such declarations, or, in

11

Page 12 the case of the editor, a copy of the

newspaper containing his name printed

on it as that of the editor shall be

held (unless the contrary be proved)

to be sufficient evidence, as against

the person whose name shall be

subscribed to such declaration, or

printed on such newspaper, as the case

may be that the said person was

printer or publisher, or printer and

publisher(according as the words of

the said declaration may be) of every

portion of every newspaper whereof the

title shall correspond with the title

of the newspaper mentioned in the

declaration, or the editor of every

portion of that issue of the newspaper

of which a copy is produced.”

Therefore, from the scheme of the Act it is

evident that it is the Editor who controls the

selection of the matter that is published in a

newspaper. Further, every copy of the newspaper is

required to contain the names of the owner and the

Editor and once the name of the Editor is shown, he

shall be held responsible in any civil and criminal

proceeding. Further, in view of the interpretation

clause, the presumption would be that he was the

person who controlled the selection of the matter

that was published in the newspaper. However, we

hasten to add that this presumption under Section 7

12

Page 13 of the Act is a rebuttable presumption and it would

be deemed a sufficient evidence unless the contrary

is proved. The view which we have taken finds

support from the judgment of this Court in the case

of K.M. Mathew v. K.A. Abraham, (2002) 6 SCC 670 , in

which it has been held as follows:

“20. The provisions contained in the

Act clearly go to show that there

could be a presumption against the

Editor whose name is printed in the

newspaper to the effect that he is the

Editor of such publication and that he

is responsible for selecting the

matter for publication. Though, a

similar presumption cannot be drawn

against the Chief Editor, Resident

Editor or Managing Editor,

nevertheless, the complainant can

still allege and prove that they had

knowledge and they were responsible

for the publication of the defamatory

news item. Even the presumption under

Section 7 is a rebuttable presumption

and the same could be proved

otherwise. That by itself indicates

that somebody other than editor can

also be held responsible for selecting

the matter for publication in a

newspaper.”

Now reverting to the authority of this Court in

the case of K.M. Mathew v. State of Kerala, (1992) 1

SCC 217, relied on by Mr. Dave, in our opinion, same

13

Page 14 instead of supporting his contention, goes against

him. In the said case it has been observed as

follows:

“9. In the instant case there is no

averment against the Chief Editor

except the motive attributed to him.

Even the motive alleged is general and

vague. The complainant seems to rely

upon the presumption under Section 7

of the Press and Registration of Books

Act, 1867 (‘the Act’).But Section 7 of

the Act has no applicability for a

person who is simply named as ‘Chief

Editor’. The presumption under Section

7 is only against the person whose

name is printed as ‘Editor’ as

required under Section 5(1). There is

a mandatory (though rebuttable)

presumption that the person whose name

is printed as ‘Editor’ is the Editor

of every portion of that issue of the

newspaper of which a copy is produced.

Section 1(1) of the Act defines

‘Editor’ to mean ‘the person who

controls the selection of the matter

that is published in a newspaper’.

Section 7 raises the presumption in

respect of a person who is named as

the Editor and printed as such on

every copy of the newspaper. The Act

does not recognise any other legal

entity for raising the presumption.

Even if the name of the Chief Editor

is printed in the newspaper, there is

no presumption against him under

Section 7 of the Act.”

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Page 15 In this case the accused was the Chief Editor of

Malyalam Manorama and there was no allegation against

him in the complaint regarding knowledge of the

objectionable character of the matter published. In

the absence of such allegation, the Magistrate

decided to proceed against the Chief Editor. On an

application by the Chief Editor, the process issued

against him was recalled. The High Court, however,

set aside the order of the Magistrate and when the

matter travelled to this Court, it set aside the

order of the High Court. This Court made distinction

between ‘Editor’ and ‘Chief Editor’. In no uncertain

terms the Court observed that the Press and

Registration of Books Act recognizes ‘Editor’ and

presumption is only against him. The Act does not

recognize any other legal entity viz., Chief Editor,

Managing Editor etc. for raising the presumption.

They can be proceeded against only when there is

specific allegation.

We may here observe that in this case, this Court

has held that the Magistrate has the power to drop

15

Page 16 proceeding against an accused against whom he had

issued process in the following words:

“8. It is open to the accused to plead

before the Magistrate that the process

against him ought not to have been

issued. The Magistrate may drop the

proceedings if he is satisfied on

reconsideration of the complaint that

there is no offence for which the

accused could be tried. It is his

judicial discretion. No specific

provision is required for the

Magistrate to drop the proceedings or

rescind the process. The order issuing

the process is an interim order and

not a judgment. It can be varied or

recalled. The fact that the process

has already been issued is no bar to

drop the proceedings if the complaint

on the very face of it does not

disclose any offence against the

accused.”

However, this Court in Adalat Prasad v. Rooplal

Jindal (2004) 7 SCC 338, has specifically overruled

K.M. Mathew (Supra) in regard to the power of the

Magistrate to recall its order issuing process. It

has been observed as follows:

“15. It is true that if a Magistrate

takes cognizance of an offence, issues

process without there being any

allegation against the accused or any

material implicating the accused or in

contravention of provision of Sections

16

Page 17 200 and 202, the order of the

Magistrate may be vitiated, but then

the relief an aggrieved accused can

obtain at that stage is not by

invoking Section 203 of the Code

because the Criminal Procedure Code

does not contemplate a review of an

order. Hence in the absence of any

review power or inherent power with

the subordinate criminal courts, the

remedy lies in invoking Section 482 of

the Code.

16. Therefore, in our opinion the

observation of this court in the case

of K.M. Mathew v. State of Kerala,

1992 (1) SCC 217, that for recalling

an erroneous order of issuance of

process, no specific provision of law

is required, would run counter to the

scheme of the Code which has not

provided for review and prohibits

interference at interlocutory stages.

Therefore, we are of the opinion, that

the view of this Court in Mathew’s

case (supra) that no specific

provision is required for recalling an

erroneous order, amounting to one

without jurisdiction, does not lay

down the correct law.”

Thus our reference to K.M. Mathew (supra) may not

be construed to mean that we are in any way endorsing

the opinion, which has already been overruled in

Adalat Prasad (supra) .

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Page 18 Thus the impugned judgment of the High Court is

indefensible both on facts and law. Any observation

made by us in this judgment is for the decision in

this case. It does not reflect on the merit of the

allegation, which obviously is a matter of trial.

In the result, the appeal is allowed, the

impugned judgment of the High Court is set aside and

the court in seisin of the case shall now proceed

with the trial in accordance with law.

……………………..………………………………..J.

(CHANDRAMAULI KR. PRASAD)

…….….……….………………………………..J.

(V. GOPALA GOWDA)

NEW DELHI,

MARCH 11, 2013

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